Ever wish that you could say what you really feel about something going on in Klal? Ever wonder just why Klal acts/thinks the way it does? Here members of Klal can have the conversations they should be having but that aren't happening elsewhere, except, perhaps, in whispered conversations in dark corners. Say what you mean here, and let us hope that some conversation now will lead to changes later, some changes that are long overdue in Klal.

Tuesday, October 5, 2010

Now, not Later

When I first started this blog I had a posting up on the controversy surrounding the idea of retirement as a "non-Jewish idea." Buried in the comments of that posting were some excellent suggestions that, unfortunately, a whole lot of people are either unaware of or don't want to think about.

I'm talking about living wills, medical proxies and regular wills. Granted, none of us want to spend our days focused on when our lives will end or the possibilities of being medically disabled, such that we can't make decisions for ourselves. But we don't have to spend all that time thinking morbid thoughts if we have prepared ourselves adequately.

Having a will is absolutely incumbent on each and every one of us. Parents of young children are concerned about the here and now--but what will happen to those young children if one of the parents dies intestate? For one thing, someone else just might be making decisions for that group of youngsters, someone the parents wouldn't have chosen. For another thing, most of the states will get a far larger portion of any monies/properties/investments that the deceased owned than those states would if a duly registered will was in place.

Yes, there seems to be some conflict in some cases between the wording that some rabbanim want to see in a "kosher" will and the wording in a standard secular will. But now is the time to work that out, not when it is too late.

As to the living wills, a whole lot of people carry all kinds of medical and life insurance. A living will is just another kind of insurance. It allows a person, while still in full possession of their faculties, to say what they do or don't want regarding medical treatment should they be unable to make decisions at the time the medical treatment might become necessary. A friend and I have been having a discussion about this recently because a third person we know is now in a true mess due to no living will having been filed. This woman's husband is mortally ill. Although this woman and her husband had discussed his feelings about certain medical procedures and interventions, they never got around to putting these feelings down on paper. Now this poor woman is in a battle royal with her husband's parents and siblings, who differ a great deal on what should be done for this man. The lawyers on both sides are going to be making a fortune. All this could have been avoided if that living will had been filed. It also could have been avoided if a medical proxy had been filed, allowing one to decide before it becomes necessary or impossible just who will make medical decisions for you if you aren't able to make them yourself.Do yourself a favor, and your loved ones as well, and get those wills and living wills and medical proxies filled out now, when you don't need them. Some people will opt for a lawyer to do the filing: there are also any number of places online which have forms you can fill out and then have witnessed. Whichever way you choose to do things, now is the time. Addendum to Posting: for a free site to fill out a living will and also a medical proxy form, go to http://www.legacywriter.com/livingwill.asp?src=g12livingwillsz&gclid=CKuH853hu6QCFdJL5QodzGhXnQ

For a fairly comprehensive discussion of the difference between a halachic will and a secular will see

http://www.jlaw.com/Articles/last_will_and_testament1.html

As I understand it, some rabbanim counsel that to avoid any problems the halachic will should state that any and all bequests made by the person writing the will are given to whomever is named in the will a few hours/minutes (not sure of which) before death occurs, thus avoiding the problem of inheritance, as monies given before death are not inherited funds but gifts.

ProfK: Excellent post, but two points that might not be correct. First, how much money goes to the state does not depend on whether or not you have a will unless there are no living heirs. If there are any living heirs (and that can include distant cousins) there are statutes in each state that spell out how the estate is distributed among the heirs. If there is a spouse and/or children, the money goes to them. Estate taxes are an entirely different issue and while there are some ways to structure an estate to minimize some part of estate taxes, most people do not leave a large enough estate to be taxed (at least as the estate tax system was in place before this year, as you know the estate tax issue is very much in flux right now). Second, I doubt very much that the clause you mention about the inheritance being retroactively made into a gift can affect taxes or legal title or avoid civil inheritance laws.

Finally, while you are talking about the very real problem of parents dying without a will or living will, I would add a mention of life insurance for both parents. We often see appeals and fund raising drives for the families of a parent stricken while young. I always wonder why they didn't have life insurance. The money spent on fancy furniture for newlyweds, jewelry gifts, a fraction of the cost of a big wedding, etc. could be put toward paying several years of premiums for life insurance. Its very cheap if you get your policy while young. I think its completely irresponsible to start a family without life insurance in place other than for the truly dirt poor or the extremely wealthy.

Anon,The statement in the halachic will about the monies being given before death is not specific to estate taxes but is supposed to get around the requirements of inheritance in Jewish law. Technically in Jewish law a b'chor gets a double portion and the other sons each get a single portion. Halachically daughters don't get inheritance of monies from their parents. Halachicly you can't disinherit a son. Having the wording be that monies are distributed coming right before death gets around this, at least for some rabbanim

Excellent posting. I'd just add that wills have to be reviewed periodically and sometimes changes need to be made. A will made when your kids are very young will need updating when your kids get older. In our case guardians we named when the kids were very young, two of our parents, needed to be changed in the will when one of those parents died.

1) A will is most necessary for those with assets that will become probate property at death for which they don't want distributed according to the intestacy statutes. Many forms of property nowadays are non-probate (for example, joint bank accounts or investment accounts with right of survivor). In intestacy the property generally goes to one's spouse and children so often this isn't a problem. It's where a person has other wishes that a will is necessary.

2) Arranging for a guardian for one's children is in the case that BOTH parents die.

3) A will cannot by itself prevent money from going to the State in the form of taxes. In fact, property only escheats to the State if there is no will and no heirs that would inherit under the intestacy statute.

4) I'd be wary of using an online form to carry out one's will, living will, or medical proxy form. A lawyer can draft these cheaply and is far better equipped to deal with state and local laws and decisions.

5) Finally, in terms of the halachic will, I read the article you provided and, shockingly, it would seem that halachic authorities are all over the map with what they want. All I can say is that I'd make darn sure that whatever you decide to do, a competent lawyer approves it. To my mind all this points out is that Torah law is way out of synch with current modes and methodologies and thinkings of inheritance and that halacha as a system of law is centuries behind the modern, American system of law.

If halacha and beit din is ever going to be taken seriously as a modern system of law it has some serious catching up to do.

JS, maybe for a regular will I'd want to go to an attorney, but for a living will and a medical proxy an attorney is not necessary, although the lawyers would love you to think so. I've worked in a hospital, clinical and senior residence facility setting and we routinely gave and give out copies of both the living will form and the medical proxy form when people come to us. The form we used in the hospital is virtually word for word with the form in the link provided in the posting. As part of the admission procedure we routinely asked if an incoming patient had a medical proxy and if they didn't we gave them the form, had them fill it out, got it witnessed and notarized and had it on file with a copy for the patient.

Somewhere in the beginning someone with legal experience drafted the wording, but it's not necessary to have a lawyer involved, only to have two legitimate witnesses and a notary. Trust me, a notary is a whole lot cheaper than a lawyer is, and in the hospital we didn't charge the patients the notary's fee. Know any lawyers who would only charge $10 for filling out one of the living will or medical proxy forms? I didn't think so.

Wills are not just for people with a lot of assets. Transferring title and assets is much easier with a will than without. The best is to own your assets in a way that does not require that they go through probate, such as via joint ownership of property as tenants by the entirety, making sure that a beneficiary is named on retirement accounts, etc. That doesn't mean you avoid taxes, but can avoid some of the hassles and expense of the probate process.

Definitely see a lawyer for a will. There can be some very specific technical requirements and traps for the unwary that vary state by state. Agreed that for a medical proxy and living will you don't necessarily need a lawyer. Many lawyers will throw in those documents for free or close to if they are also doing your will.

I agree with Michele that at least for a living will and a proxy form that a lawyer shouldn't be necessary. Tell people that they are going to have to go to a lawyer to get something done and that is an appointment that will be put off and put off. Any lawyer's visit is not cheap and people avoid lawyers if they can.

That said, where Michele works is somewhat unusual in automatically giving out those proxy forms. I've been in hospitals that never mentioned the forms at all. My mom's nursing home did not require it or give us a form to fill out.

I think we need to have more public places that have those forms available--every drugstore should have a stack of them clearly visible to customers, every hospital should be required to give them out, every nursing home should have them, every library should have a stack by the checkout counters. Hey, let's put them in every major supermarket and shopping mall and community center. This is one area where more would really be better. Too many people who don't even know about the proxies and they find out when it's too late.

You don't need a lawyer for anything, technically speaking. I prefer to think of it as an insurance policy of sorts. I'd rather pay a few bucks and know that the document was executed properly (or, at least, there's someone to sue if it wasn't).

I suggest you take a law school class in Wills to see how the simplest, stupidest thing can have enormous ramifications when it comes to whether a will is even admitted to probate let alone what the outcome will be once in probate. What happens if a distributee predeceases the testator? No residue of a residue or remain in the residue? Is it a class gift? Does the anti-lapse statute apply? You get the idea.

"Tell people that they are going to have to go to a lawyer to get something done and that is an appointment that will be put off and put off."

I'm not speaking to someone with such an irresponsible attitude. For some people making a phone call or sending a quick email is too much to be bothered with.

"Any lawyer's visit is not cheap and people avoid lawyers if they can."

JS hit the nail on the head with this one. I'm only a first year law student, but I am taking Property this semester, and I've read a bunch of cases where surviving family members got really screwed because the person wrote the will themselves and used colloquial terms that mean something completely different in a legal context. You really don't want some random judge deciding what was in your head at the time that you wrote your will; better to spend some money now to get a lawyer who understands the system and the terminology (and who knows how a judge will view it, if it comes to that) and save your family the pain, hassle, and possible financial loss later.

About Me

I'm a wife, mother, daughter, sister and friend. I believe that activism can be a force for change. I blog because I believe that an exchange of information can be a positive force in the Jewish world. For comments about Conversations In Klal please write to conversationsinklal@hotmail.com. For comments about Jewish Community Services please write to jewishcommunityservices@live.com